Case: 21-1705    Document: 13     Page: 1   Filed: 07/16/2021




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 PAMELA J. RACKLEY,
                   Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2021-1705
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 19-5006, Judge William S. Green-
 berg.
                 ______________________

                  Decided: July 16, 2021
                  ______________________

    PAMELA J. RACKLEY, McMinnville, TN, pro se.

     ALBERT S. IAROSSI, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY,
 JR.; BRIAN D. GRIFFIN, BRYAN THOMPSON, Office of General
 Counsel, United States Department of Veterans Affairs,
 Washington, DC.
Case: 21-1705     Document: 13      Page: 2   Filed: 07/16/2021




 2                                    RACKLEY   v. MCDONOUGH



                   ______________________

     Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
 PER CURIAM.
     This appeal involves a claim for veterans benefits. Ap-
 pellant Pamela J. Rackley appeals the decision of the
 United States Court of Appeals for Veterans Claims affirm-
 ing the Board of Veterans’ Appeals denial of her claim for
 surviving spouse benefits based on the death of her former
 husband, Terry Miller. We lack jurisdiction to hear this ap-
 peal and therefore we dismiss.
                               I
      Mr. Miller served on active duty in the United States
 Army. His final period of active service was from Decem-
 ber 1977 to March 1979. Ms. Rackley and Mr. Miller were
 married in November 1977, and they had a child in Sep-
 tember 1978. Ms. Rackley and Mr. Miller divorced in
 July 1981. Mr. Miller died on June 3, 2000. In March 2017,
 Ms. Rackley submitted a claim for entitlement to VA bene-
 fits based on Mr. Miller’s death. After the VA Regional Of-
 fice denied her claim, she appealed to the Board, which
 denied her claim in April 2019. Ms. Rackley appealed to the
 Veterans Court, which issued its decision affirming the
 Board’s denial in November 2020. Rackley v. Wilkie,
 No. 19-5006, 

 (Vet. App. Nov. 24, 2020).
 This appeal followed.
                               II
     The scope of this court’s jurisdiction to review decisions
 by the Veterans Court is narrow. We may review decisions
 by the Veterans Court “on a rule of law or of any statute or
 regulation . . . or any interpretation thereof (other than a
 determination as to a factual matter)” that the Veterans
 Court relied on in making its decision. 38 U.S.C. § 7292(a).
 But we lack jurisdiction to review “a challenge to a factual
 determination” or the application of law to fact unless the
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 RACKLEY   v. MCDONOUGH                                      3



 appeal presents a constitutional issue. 38 U.S.C.
 § 7292(d)(2); see also Cook v. Principi, 

, 939
 (Fed. Cir. 2003).
                               A
     Ms. Rackley states in her informal opening brief and
 reply brief that her appeal challenges the Veterans Court’s
 interpretation of a statute, regulation, or constitutional
 provision. Appellant’s Br. 1–2. However, the Veterans
 Court’s decision does not consider the validity of or elabo-
 rate on the meaning of any such provision. At most, the
 Veterans Court applied existing law to the facts of
 Ms. Rackley’s case.
    A veteran’s surviving spouse may be eligible for death
 benefits. 38 U.S.C. §§ 1310, 1541(a). The term “surviving
 spouse” is defined by 38 U.S.C. § 101(3):
     a person . . . who was the spouse of a veteran at the
     time of the veteran’s death, and who lived with the
     veteran continuously from the date of marriage to
     the date of the veteran’s death (except where there
     was a separation which was due to the misconduct
     of, or procured by, the veteran without the fault of
     the spouse) and who has not remarried or (in cases
     not involving remarriage) has not since the death
     of the veteran, and after September 19, 1962, lived
     with another person and held himself or herself out
     openly to the public to be the spouse of such other
     person.
     Ms. Rackley argues in her informal briefs that the Vet-
 erans Court erred by failing to consider three facts: (1) that
 her separation from Mr. Miller was due to his misconduct,
 and no fault of her own; (2) that Ms. Rackley and Mr. Mil-
 ler had a child while they were married; and (3) that
 Mr. Miller did not satisfy his financial obligations to his
 child while he was alive. Appellant’s Br. 1–2, 8–9;
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 4                                   RACKLEY   v. MCDONOUGH



 Appellant’s Reply Br. 1–4. For the purposes of this appeal,
 we assume these factual assertions to be true.
      As to the first, this court has already considered and
 rejected the argument that the spousal abuse exception to
 the continuous cohabitation requirement of 38 U.S.C.
 § 101(3) also creates an exception to the requirement that
 a surviving spouse be “the spouse of a veteran at the time
 of the veteran’s death.” Haynes v. McDonald, 

,
 615–16 (Fed. Cir. 2015) (analyzing analogous regulation).
 In Haynes, we made clear that the spousal abuse exception
 pertains only to spouses who have separated, but not di-
 vorced. 

 As such, the Veterans Court applied our holding
 in Haynes to the facts of Ms. Rackley’s appeal.
      As to the second and third factual assertions—that
 Mr. Miller and Ms. Rackley had a child and that Mr. Miller
 failed to satisfy his obligations to that child—we can dis-
 cern no statutory or regulatory basis by which either of
 these facts (which we assume to be true) could create an
 exception to the requirement that a “surviving spouse”
 must be married to the veteran at the time of the veteran’s
 death. Though we share the Veterans Court’s sympathy for
 Ms. Rackley’s circumstances, we lack the jurisdiction to re-
 view the decision because the Veterans Court merely ap-
 plied existing law to the facts of Ms. Rackley’s case.
                              B
     Finally, Ms. Rackley argues in her informal briefs that
 the Veterans Court’s decision violated “her constitutional
 liberty.” Appellant’s Br. 2. But her arguments regarding
 this purported violation of constitutional rights reiterate
 the factual assertions of misconduct by Mr. Miller and his
 failure to meet his financial obligations to his child while
 he lived. 

 Although we have jurisdiction to consider con-
 stitutional questions, simply characterizing an argument
 “as constitutional in nature does not confer upon us juris-
 diction that we otherwise lack.” Helfer v. West, 

, 1335 (Fed. Cir. 1999). Because the Veterans Court’s
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 RACKLEY   v. MCDONOUGH                                      5



 decision did not involve any constitutional provision, we
 are without jurisdiction to consider this argument.
                              III
     Ms. Rackley’s appeal challenges only the Veterans
 Court’s application of law to the facts of her case. Because
 we lack jurisdiction to review the application of law to fact,
 we dismiss.
                          AFFIRMED
                            COSTS
 No costs.